Sal>
FEDERaL REPORTER.
P ARKERV. (DiBWict Court, E. CARRIERS-OF
TIERS
and others. l Febru$ry 4, 1887.)
n. Penn811wania.
Goons-CONTBACT
TO FU:RNISH CARGO-BREACH-DAMAGES.
. In Admiralty. Theodore M. Etting, for libelant. F. S. Brown, for reSlpondent. BUTLER,
"of about loO.tons" of bones, and the libelant undertook to carry thisnum-
J.
By the contract, respondent undertook to fumish a cargo
ber of tons. There was no express stipulation where they should be stored, but it seems to have been contemplated that, after filling the hold, the balance should be placed on deck. The contention by respondent that the libelant, when loading, claimed that he was only to receive what could be strlred in the hold, and refused to receive more, is not sustained by the proofs. It is true that Mr. Fitch swears to this, but his testitimony is met by that of the master, who, although not called after Mr. Fitch had testified. nor in antlcipation or with knowledge Of what this witness would say, swears to facts wholly inconsistent with Mr. F.'s testimony. All the material circumstances of the case, bearing on the subject, also, are irreconcilable with Mr. Fitch's testimony. At the very time when this witness (whose miscalculation, or mistake, caused the litigation) says the libelant refused to take more bones, the libelant was protesting in writing against the violation of his contract in not fumishing the 150 tons. From the beginning to the end the libelant's conduct was consistent with the position that he expected to earry this quantity, and with no other. It is impossible, therefore, to avoid the conclusion that Mr. Fitch is mistaken, or unreliable. If the respondent had furnished 145. tons, I would hold that the terms of the contract had been complied with. I am inclined to think that a materially greater shortage than this would not be allowable. He furnished 106, and must be held responsible for failure to fumish the balance of 145, to-wit, 39. The libelant's damages are therefore what he would have made by carrying this additional quantity according to the terms of the contract. A decree will be entered accordingly. JReported by O· .Berkeley Taylor. Esq., oithe Philadelphia bar.
aUlilT t1. FISHER.
801
HURT 11. FISIlER
and others. 7, 1887.}
{OGrcuit Oourt, 1. S.
W; D.Tenne8868. I
REMOVAL OF CAUSES-STAYING PROCEEDINGS OF STATE COURT-REV. ST.
U.
Notwithstanding the prohibitions of Rev. St. U; S. §720; if the preliminary injunction staying the proceedings of the state court be granted by a state court, the ell-use will not be removal to the federal court. If there be parties interested in the subject,matter of a suit in equity, which has been removed to the federal court, who have been intentionally omitted from the bill, upon their application, the plaintiff will be compelled to amend his bill, and bring them in, 9n pain of remanding the cause to the statecoUI't; where the,llause cali be consolidated with other suits there pending, to wpic4 the applicants are parties, or of.hll-ving his bill dismissed. OF CAUSlllS-NEW PARTnl:S-PLAUiTxFF COM" ,
, , '
2.
,EQUITY PELLED TO MAKE.
8.
COURTB"'-sTATE AND ,FEDJmAIr-JURISDICTION TO VACATE DEOREES.
,Nei,ther state nor federal cOlU"ts will undertake to review or correct the 81"-. rors Of eacb, other, but either, ,as 'will any court of equity, may inquire into a, titleprol}ured through judicial proceedings in the other,and, if found based on the fraudulent pr!i:cticesof the parties, the latter will be restrained'from: taking any advantage under such proceedings. '" '
4.
JUDICIAL SALES-INADEQUACY. OF PRICE. ,
Where title to property worth many thousands of dollars was purch1lSed at a judicial sale for $100, the purchaser was restrained from taking anytitle·by the purchase, because the faots sho:wed that the Bale ,was made under adverse circumstances, when crel;iitqrs jointly intere'stedwere 110t partiell,: and, the decree was procured, and the sale made, in, a court distant from that in which the land was situated. ., . CREDITORS-PROPER PARTIElI TO FORECLPSE
G. EQUITy-ASSIGNMENT
Where a partner conveyed his interest to another -upon the iien of a contract that ilie latter would pay his debts. mentioned in the contract, and hUnself an annuity, the creditors should be made parties to any foreclosure bill, unless some reasonable excuse be given for omitting them; and one creditor alone will not be permittedio procure a sale, binding on the others, which it would be .inequitable to sustain because of an inadequacy of the price realprice, the omitted creditors might be remitized. If the purchaser pay a ted to a remedy against the fund; but, if not, they can pursue the land in his . handS, and enforce their lien. , ' Where a debtor conveyed his property to secure his debts, and, by the slime conveyance, secured himself an annuity, he occupies a dual relation to the parties to the contract; and, if the bill be filed by one creditor to foreclose the lien for his sole benefit. the fact that the assignor is made a defendant in his capacity of debtor only does not preclude him from filing a'bill, in his capacity of credito1',to avoid the sale for inadequacy of price. The esto'{lpel must be confined to the scope of the bill, lP,nd not comprehend anythmg beyond that scolle. ,
6.
SAMJll-,-DuAL RELATION OF CREDITOR AND DEBTOR-EsTOPPEIr-RES ADJUDICATA. .
'i.
AsSIGNMENT ,FOR BENEFIT OF CREDITORS-ELECTION :BY AsSIGNEE OF THOSE TO BE PAID-CONSTRUCTION OF STIPULATION TO THAT EFFECT.
Where it was provided by a contract that the assignee should pay a certain class of creditors to a given amount, and might" elect» such as should be paid,
lA judicial sale ,will be set aside for.grQIIS inadequacy ofprice, accompanied by fraud, oppression, or otber unfairness in .the conduct of the safe. Davis v. McGee, 28 Fed. Rep. 867; Bea.n Hoffendorfer, (Ky.) 2 S',W. Rep. 556, and note. See, also, Ca.rden v. Lane. (Ark.) 2 S. W.Rep. 709.
v.
.
v.29F.no.16-51